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HomeMy WebLinkAbout2.06.2020 P&Z Minutes_exppdf 1 City Staff and Others: Scott Johnson – Economic Development Stephen Zollinger – City Attorney Natalie Powell – Compliance Officer Tawnya Grover – P&Z Administrative Assistant Chairman Rory Kunz opened the meeting at 6: 30 p.m. Roll Call of Planning and Zoning Commissioners: Present: Chairman Rory Kunz, Melanie Davenport, Greg Blacker, John Bowen, Steve Oakey, Vince Haley, Kristi Anderson, Keith Esplin, Todd Marx. Absent: Bruce Sutherland, David Pulsipher. Minutes: From Planning and Zoning meeting – January 16, 2020 MOTION. Move to approve the minutes for January 16, 2020. Action: Approve, Moved by Kristi Anderson, Seconded by Todd Marx. VOTE. Motion passed (summary: Yes = 8, No = 0, Abstain = 1). Yes: Chairman Rory Kunz, Greg Blacker, John Bowen, Kristi Anderson, Melanie Davenport, Steve Oakey, Todd Marx, Vince Haley. Abstain: Keith Esplin. Public Hearings: None Items for Consideration: (19-00138) 12th W & Hwy 33 Final Plat (action) - Alan Parkinson - The preliminary plat was approved in January. He has completed what is needed to consider the final plat with the following conditions: 1. Island off Hwy 33 will follow State requirement s. 2. Street lighting will be installed per the Development Code. 3. Utilities will meet the approval of the City Engineer. 4. Storm drainage will be handled on site. 5. An agreement will be signed by the applicant for the maintenance of interior roads. 6. Utility easeme nt needs to be increased to 15’ along roadways. (This plat shows the easement.) 7. Approved by County Surveyor. The boulevard strip and the parking shown on the preliminary plat in the middle of Sawtelle Avenue has been removed. The entire street will be maintained by the city. Steve Oakey asked if there is a consideration that the Developers maintain the roads, so this keeps the city out of the maintenance. At one time, Mitch was going to maintain part of the road and he would take care of the parking and the boulevard strip. One of the options was the City was going to take care of the road part of the road and Mitch was going to take care of the parking and 35 North 1st East Rexburg, ID 83440 Phone: 208.359.3020 Fax: 208.359.3022 www.rexburg.org Planning & Zoning Minutes February 6, 2020 2 boulevard areas. Mitch has been adamant through the process about turning the roads over to the city. The City has the policy that roads through a development with multiple landowners be maintained by the City. There are some problems with having private entities take care of roads like spite strips and failure to maintain the roads. Vince Haley asked if there were any other changes from the preliminary to the final. The power company is not able to determine utility easements until a copy of the final plat is provided to them. MOTION: Motion to recommend the final plat subject to the following Staff conditions: 1. Island off Hwy 33 will follow State requirements. 2. Street lighting will be installed per the Development Code. 3. Utilities will meet the approval of the City Engineer. 4. Storm drainage will be handled on site. 5. Approved by the County Surveyor. Action: Recommend approval, Moved by Keith Esplin, Seconded by John Bowen. Commissioner considerations. Discussion of the Motion: Melanie Davenport recalled the Commissioners were told they did not need to be super-detailed in examining the Preliminary Plat, because Staff would handle that internally. What details did Staff handle; the Commission would not need to be a part of? Stephen Zollinger, City Attorney, answered, water percolation, grading, standards that apply to water and sewer as required by the Engineering Department. The Commission’s responsibility is to look at the two-dimension drawing and review the ingress/egress, placement of lots in relation to the roads, size and configuration of the lots and transportation are considerations for the Commissioners. Green space is usually considered on Site Plans. Steve Oakey gives silent applause for accelerating past the Commissioners’ expertise. He feels the projects should rely on the expertise of the Engineers. Motion is on the table and seconded, if there is no more discussion, we will vote. VOTE: Motion carried by unanimous roll call vote (summary: Yes = 9). Yes: Chairman Rory Kunz, Greg Blacker, John Bowen, Keith Esplin, Kristi Anderson, Melanie Davenport, Steve Oakey, Todd Marx, Vince Haley. February 20th – Comprehensive Plan Map Change and Rezone is coming up. Please mark your calendars. Planning & Zoning Commissioner Training – Stephen Zollinger – Spencer Rammel will be acting as the Commissioners’ legal advisor moving forward. Spencer put this presentation together, and then had to be in Boise for the evening. The authority to act as Planning and Zoning Commissioners is provided in the Local Land Use Planning Act (LLUPA). LLUPA was put in place as a comprehensive overview for local governments to act in a common way for land use. Planning & Zoning is consistent with Article 12 of the Constitution gives cities and counties a broad police power. Planning & Zoning has the power to act on the behalf of landowners. The police power includes the power to zone. The State of Idaho ultimately gives the City the authorization for land use planning. Not every entity has taken the same path Rexburg and Madison County have. The Commission was established at the very beginning of development in Rexburg and Madison County followed later. 25 years ago, there was a movement to synergize the cities and the counties. One of the results of that synergy was cities and counties were required to cooperatively determine the Impact Area. The Impact Area is located immediately surrounding the city. In the past, this used to 3 be a one-mile boundary around the city limits and as the city expanded, the Impact Area automatically expanded. This was not always a practical approach, because not everything within one mile of the city had the potential to impact the city. The State at this time was discussing water and air quality as related to industry. As Commissioners considered the impacts industry could have on Rexburg, they adjusted Rexburg’s Impact Area to be larger on the north and the east based on water areas that would adversely affect the city. All of our wells are internal to the city limits. As growth has occurred, the Impact Area has moved more out to the West. Poleline Rd. to the South has maintained the same area because there is not an environmental impact to Rexburg, yet. Other items can be considered as impacts like traffic, so there is always a reason to be considering other factors when it comes to impact. One of the things we had going for us, is we had a good working relationship with the County at the time. Stephen Zollinger represented both Rexburg and Madison County. He advocated for the Commissioners, including three individuals who would represent the county, two people appointed by the County and one person appointed by the City, who live in the Impact Area. These three members have a weighted vote on items in the Impact Area; the three individuals have the same voting power as the remaining eight for these applications. We have never had a situation where there is a stalemate between the three and the eight, but this is unique to Rexburg in the State of Idaho. This situation has worked better than any other Impact Zone in the State. Legally, this allows the City to be an advisory body to the County Commissioners. The primary responsibilities of the Commission is stewardship. The stewardship is the common person, the citizens of the areas of the city each Commissioner represents. A Commissioner’s secondary responsibility is to think strategically in planning and represent the individuals in these areas. The Commission needs to ensure that processes are in place to direct procedures. We do not want to be inventing these procedures as we go; we want to know before something is presented to us how we will respond to that presentation. The Commission should focus on efficiency, credibility and viability. The Commission should understand what is happening at each stage of the meeting. Conflicts of interest need to be declared prior to application consideration and should not come forward after the vote. Conflict of Interest exists if you are related to, within two levels of consanguinity, someone who owns the property being considered. My brother is one-step. My uncle would be to my dad, then to my uncle, which is two levels. The person who owns the property would need to be three steps or more to avoid conflict of interest per state law. OR if the Commissioner is an employee or employer, business partner, or business associate with the applicant creating an economic interest in the procedure or action (67-6506 Idaho Statute). Keith Esplin knows you cannot vote, but can you still speak to an issue? Generally, what we recommend is you declare the conflict at or before the meeting at which the action is being considered. Commissioners should not take part in deliberations or any aspect of the decision-making process. The Commissioner should step down from the dais and participate from the audience. This is particularly important when there is an interest relating to money (pecuniary) and you stand to gain from the approval of the application. Anytime you have a 4 question about conflict of interest, ask the attorney. If the Commissioner stands to benefit from the approval or they have the relationship of consanguinity, the Commissioner has a conflict of interest. Presentation or video on conflicts of interest? Stay current on matters before the Commission; be prepared. Vince Haley asked about doing research on your own, the chairman has mentioned in previous meetings. Chairman Rory Kunz explained not to drive by a specific property for the purpose of understanding an application. Stephen Zollinger said Rexburg is a little different from other jurisdictions. It is unreasonable to think a Commissioner has never driven by a piece of property. Stephen Zollinger begins each day by driving around the city to determine items that need to be brought to the attention of the departments in the City. Common behavior will put the Commissioners in contact with properties. Once it becomes an item of consideration, do not go out and purposely gain information about the property. Once it becomes quasi-judicial and the Commission becomes the judges of the facts, the Commissioners become more like a judge. Judges are required to make their decision based on what is presented to them during the course of the hearing. If you have knowledge of something outside of the information presented at the hearing, disclose your knowledge during the hearing, so the applicant has the opportunity for rebuttal. Make the applicant aware you are going beyond what is being presented. Due process is driven by opportunity. Spencer put together a list of the items that comprise a Commission. A Commission comprises of 3-12 members, appointed by the Mayor or Chairman of Commissioners and confirmed by the governing board. The governing board for the City is City Council. Each Commission shall elect a chairperson and advisory committees can be created. When there is a policy shift, the Commission can form a committee to go out and do research to bring back to the body as a whole for the decision-making process. The Commission is required to hold one regular meeting per month for not less than nine months. LLUPA cannot delegate the authority to Planning & Zoning Commissioners to adopt Ordinances. Zoning has to be adopted by Ordinance, so it cannot be accomplished on the Commission level and has to be completed with the City Council. Stephen talked about a list of items that can be resolved at the Planning & Zoning Commission level (Planning & Zoning Lingo Sheet). The Commission makes the final decision on some Conditional Use Permits and the City Council becomes the appellate board for those decisions. Boards should address new accountability expectations. An example of these accountability expectations is you may be accountable for emails that go out. Tawnya holds the Commissioners accountable to review the documents submitted digitally to them. Staff watches the Commissioners to see if they are violating any laws and if they are showing up for their meetings. The Commission is expected to know the pulse of the community and the things Rexburg needs. In the end, the Commission is required to let people try uses in Rexburg; regardless of whether we believe, they will succeed or fail. If a zone change is for another high-density zone and we know that the high-density uses already in place are at a decline, this is a factor to consider when the application comes before the board. Private property rights should be protected, but at the benefit of the entire community. Commissioners should be aware of what they are approving or denying. Melanie Davenport asked about making decisions based on trends. Commissioners do not have that purview. Sometimes, during the course of a hearing, you may have the opportunity to interject questions as it pertains to land and zoning. Keith Esplin says we protect private property and the right for someone to do what he or she wants with their property, but we also have an obligation to protect the property of 5 those who are existing. Stephen answered, to a certain extent, but emphasized looking at the community as a whole. When you make a zone change, the use should not necessarily be the deciding factor, but the protection of the zone itself. One of the times, Stephen has seen the City Council override the decision of the Planning & Zoning was when the Planning & Zoning based their decision on the reason there was too many of a particular zone in the city. The term “too many” is subjective. Commissioners should understand the community needs, available resources, historical, cultural and community expectations. Chairman Rory Kunz asked if Vince Haley’s question was answered satisfactorily; it had. The core resources are the Comprehensive Plan and the Development Code. Make decisions on the overall context of the vision of the city’s or county’s future. Every city is mandated to adopt a Comprehensive Plan; the City of Rexburg has complied. A Comprehensive Plan rewrite is in process and will be before the Commissioners before the end of 2020. There is an effort to cut the sections down in volume (there are many interesting reads that serve no purpose), focusing on the parts that guide and direct decisions. The plans shall consider “previous and existing conditions, trends, desirable goals and objectives or desirable future situations for each planning component.” The Comprehensive Plan has one purpose and one purpose only, “to guide Planning & Zoning decisions.” Actions and decisions should be “in accordance” with the city’s Comprehensive Plan. Municipalities get to choose what is in the Comprehensive Plan and once it is in place, it must be followed. Does this statement mean the Comprehensive Plan is a directive? Steve Oakey confirmed the Comprehensive Plan as it is currently administered is a directive. Stephen Zollinger asked should the Comprehensive Plan be a directive? Steve Oakey responded, “No.” Stephen continued, over the course of history, we have sluffed into a lazy behavior, of giving more value in its power to the Comprehensive Plan than it is supposed to have; the Comprehensive Plan is supposed to be a guiding document. The statute specifically says, any zoning decision must be “in accordance” with the Comprehensive Plan. John Bowen suggested this means making decisions based on the framework of the Comprehensive Plan. Stephen says a problem has been created in our current plan, because there is an attempt in several sections to direct specific actions instead of guide. The Comprehensive Plan is the sideboards within which the Commission’s decisions have to be made. The Development Code should have the specifics in it that drive the Commission to make decisions relative to a parcel of land. Vince Haley asked if the Comprehensive Plan Map or Future Land Use Map is a sideboard, but the document has to be changed in order to change the zoning, it becomes more of a driving document rather than a sideboard. Stephen answered yes in the sense that it must be changed, but you should not let that stand in the way of the right decision. The Development Code can stand in the way of a proper decision, because it is a law that says thou shalt not. The Comprehensive Plan has the “mays” and the “shoulds”. The Development Code has the “shalls”. Vince Haley provided an example from a previous meeting when the map was changed on Pioneer Rd. The map had to be changed before the zoning could take place. The Commission saw the need to change the map and this is why the change was made. One of the problems identified is Staff has failed to put the map in front of the Commission often enough as things have changed over time. 25 years ago, the utilities in the valley anticipated the majority of the growth would be between Rexburg and Sugar City. Rocky Mountain Power has put in oodles of power between Rexburg and Sugar City to service apartment complexes with. When apartments started building on Pioneer Rd., Rocky Mountain Power was years behind, because they had guessed wrong. Equipment had to be rapidly deployed to an entirely different corridor. Summerfield was not anticipated. At this time, 6 the Comprehensive Plan Map should have been brought back before the Commission to get a rework, but it did not happen. Over the course of the next several months, Staff anticipates a work session allowing the Commission to look at the Future Land Use Map and determine what is not in reality for Rexburg’s future. The map was brought before the Commission recently to address commercial nodes in the cemetery. Someone in a room somewhere was measuring; this is the right distance here and here. The Future Land Use Map was allowed to lose touch with reality. The goal is to bring the map back to reality using what we know now has transpired in the community. Vince Haley talked about the map changing often, how much credence do we give the map? Stephen answered, the map tells the Commission, the designations projected at some time in history. View the map as a hurdle that has to be stepped over, give pause and consider why it was originally determined to have that designation. This is easily overcome by facts. “In accordance” is one of fact. There is a lot of leeway given for the Commissioners, who ultimately make the decision. If history has moved the mark, our job is to move the Future Land Use Map with it. Do not keep the hurdle or the sideboard in the wrong place. Look at the sideboards, when someone asks, to determine whether the timing and reasons for making the changes has passed. Keith Esplin considers the map more of a tool for the public. Stephen says this was the original intention, giving property owners an expectation of what the community intended the property would transition to. Keith Esplin can see why the map would have to be changed all the time due to the fact the map does not meet the needs of the community. Stephen continued, in 2001 the change of Ricks to BYU-I should have prompted a look at the Comprehensive Plan and Future Land Use Map, because it changed everything the community thought they understood. The community did not understand the magnitude of what was coming or changes would have been made. For example, instead of a one block perimeter around the campus, we are going to put a three block perimeter around the campus for high-density residential because we are going to have 25,000 students, 16,000 of them are going to be single students. We went from 3-4,000 single occupancy beds to 16,000 single- student beds. Realistically, probably 18,000 beds had to be built to accommodate the students that have come in to the community. There is no way the 1999 Future Land Use Map would have accommodated for this change. This is a hard reset. We are not experiencing similar hard resets, but married housing or community housing is an adjusting factor and commercial growth. Perhaps, the name, like other communities should be named, “Future Land Use Map” instead of Comprehensive Plan Map. The map informs the property owner an expectation of what the community as a whole anticipates their property is headed towards. The property owner can contest that and try to shift that dynamic. Keith Esplin says the map also lets newcomers know what a person might expect in their neighborhood. Stephen responded, that is correct, but this is also the one that gets the City in the most trouble. One of the discussions that comes forth is the argument that the Future Land Use Map is not going to change. That is great, but when 2001 happened, your house was located in a place where 12,000 more beds are needed. It is unrealistic to be bound by the Future Land Use Map when history shifts so dramatically. Melanie Davenport feels when she started as a Commissioner; she felt the map was relevant. The map is referred to all the time. On Staff Reports, it usually says, “the request should be in accordance with the Comprehensive Plan.” In the last few years, it has been difficult because the map has changed so much. The community does feel that the map is a hard line. Stephen responded, we need to teach community members that the map is a guideline, not law. Even the Supreme Court has a difficult time with the “in accordance” language and have to be reminded. Evans vs. Teton County. Evans prevailed because the County Commission said it was inconsistent with their Comprehensive Plan as the reason for their decision. When the decision is based on conformance to a Comprehensive Plan, it is a win, but 7 when a decision is denied based on a Comprehensive Plan, this is when there is an issue. Upon denial, this is when the Supreme Court has an objection.  Zoning cannot be against the Comprehensive Plan; the map has to be changed first.  Conditional Use Permits cannot be in conflict with Comprehensive Plan.  Tawnya is good about reminding you that you have to have reasons for your decision in your motion.  The Comprehensive Plan is a constantly evolving document. The Comprehensive Plan is no longer restricted to being changed every 6 months; it can be changed at any time.  Future Land Use Map is a piece of the Comprehensive Plan. Commissioner responsibilities:  Commissioners are accountable to the community in which they serve.  Ensure transparency in decision-making.  Provide guidance for what the community should develop in to.  Make decisions for the policies that advance the goals of the community.  Observant of what is transpiring in the community.  Mandated to provide the tools to build relationships with the community, Staff and prospective businesses. “We think it is a settled principle growing out of the nature of well-ordered, civil society, however absolute and unqualified may be his title, holds it under the applied liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others, having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth is derived directly or indirectly from the government and held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious and to such reasonable restraints and regulations as established by law as the legislature may think necessary and expedient.” (Lemuel Shaw - Commonwelath v. Alger 1851). This quote is everything Stephen just talked to the Commissioners about. What the quote says is we protect your property rights up to the point that it injures or adversely affects your neighbors or the community as a whole. This is not always very easy to understand. Minimize conflicts. Match land uses with services. Look at the vision of the future. Chairman Rory Kunz asked about what “injurious” means. This word can mean different things to different people. Has there been any court decisions that define “injurious”? No, it is case-by-case. The best example that Rexburg has experienced: 15 years ago, there was a member of the Commission of Rexburg that did not want to allow any commercial signs to be erected. She felt any type of commercial sign was injurious to everyone. She pointed out other communities that were thriving without commercial signs. The Commissioner felt that aesthetics on a property were ruined by any type of signage. Stephen feels that signs serve a valid and necessary purpose. This would cause conflicts with Stephen Zollinger and this Commissioner. This Commissioner and Stephen are brother and sister. I tell you this story to help you understand why there are 11 Commissioners. The different 11 Commissioners are such that there is a variety of people who represent cross-sections of the community. “Injurious” is you will know it when you see it. Everyone has his or her own opinion on what is injurious to your neighbor. Vince Haley talked about the situation of the food court and the Dairy Queen business. What was injurious to him, was 8 not seen as injurious to others. He quoted Steven Covey, “Our strength lies in our differences, not our similarities.” Vince asks many questions to get a broad spectrum of answers for his own understanding. Due Process – Amended procedure: Open Public Hearing 1. Staff Presentation 2. Applicant Presentation – Questions to applicant 3. Written Correspondence 4. Supporters of the Application 5. Neutrals 6. Opponents present and rebut 7. Applicant rebuts Public Hearing Closed Vince Haley confirmed asked when questions can be made and when they should stop. Chairman Rory Kunz responded, questions should stop when the public hearing is closed. If it is a question to the applicant, it should be during their due process. For witnesses, unless it is a clarifying question about their testimony. The question should not elicit new information from them. Commissioners can ask Staff questions for clarification after the public hearing has been closed. Tawnya will give the Commissioners a paper on “ex-parte communications”. Ex parte communications are conversations about any item that will come before the Commission. Any conversations regarding an item before the Commission, must be heard before the whole Commission at the meeting to the body as a whole. Each Commissioner has no authority as an individual. There is the chance you will run into somebody at the gas station. Encourage them to attend the hearing or write down their statement and submit it as written correspondence, because I do not want to get it wrong. Disclose the conversation before the hearing. “I ran into….and they had a conversation with me about….” Kristi Anderson talked about Stonebridge. A woman called Kristi to find out what she wanted to do to protest. If the person gives you information, you are expected to disclose that. Stephen Zollinger and Greg Blacker had to leave the meeting at 7:51p.m. Melanie Davenport feels Chairman Rory Kunz needs to be recognized for what he does. Every item on the agenda, the Commissioners are trying to formulize the situation in our minds. It is so good that Rory can engage in the thought process of keeping the meeting organized but still consider the testimony. She feels Rory is doing an excellent job. Steve Oakey talked about what zoning does to diminish peoples’ values. Alan, what do you understand about the information presented tonight? The Comprehensive Plan has been implied as another layer of zoning. Land use has been enacted by changing the Comprehensive Plan to change the zoning. Am I hearing tonight there is a full reversal of procedures? Or are we going to follow the law and use the Future Land Use Map as a guide? Zoning is a legal mechanism that does need to be changed. The Future Land Use Map as he thinks he saw in statute is that it is not to act in that way, but be a mindful guide. Is it a requisite change? Alan’s experience is limited, but he will try to explain what he understands. The Comprehensive Plan is a document to guide us and direct us, but it also has some teeth. The Comprehensive Plan will be updated as needed as a guiding document and stay within those borders. There are some ranges within the Future Land Use Map. One of the challenges is the Comprehensive Plan and the Future Land Use Map has not been revisited since 9 2008. The City has to be more aggressive and project where we see the community going. Chairman Rory Kunz said one of the statutes shown is used as a guide, but it still needs to be changed first. The city is still maintaining its current process. Steve Oakey hoped he was hearing something different, the Comprehensive Plan would be more of a filter instead of a barrier. Keith Esplin said the new Comprehensive Plan and Future Land Use Map should be less restrictive, because it will allow more things to happen and will not have to change as often. He believes we can get to what Steve is talking about, by making the changes ahead of time instead of as each individual application comes in. Alan Parkinson believes this will also happen as the Commissioners and Staff become more familiar with the Plan and Map and revisiting them more often. The Comprehensive Plan and Map should be reviewed every 5 years, but it is recommended to look at them each year. A 20-year projection is difficult, but we know better what is going to happen next year and the next five years. Then, we can adapt to trends and make adjustments. Keith Esplin suggested Staff present their new proposal, but it might be advantageous if the general ideas of the plan and a look at the map is done with the Commission to give more direction prior to having all the ideas in place. Alan is working with Staff to take out the items that are not needed and then it will be brought to the Commission and allow the Commission to provide feedback and the opportunity to hear Staff suggestions. Staff anticipates the Commissioners being part of the Comprehensive Plan rewrite process and the Map changes. Heads Up: February 20th Hearings: 1. (19-00778) – 814 N Yellowstone Hwy – Comprehensive Plan Map change 2. (19-00778) – 814 N Yellowstone Hwy – Rezone to MDR1 Adjournment: Commissioner Rory Kunz adjourned the meeting at 7:52PM.